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In the final month of this Congressional session, the Senate may take up criminal justice reform. The First Step Act – a bill led by a bipartisan group that includes Judiciary Committee Chairman Chuck Grassley (R-IA) and Democratic Whip Dick Durbin (D-IL) – attempts to chip away at this country’s mass incarceration problem, reduce recidivism, and walk back some unfair sentencing practices. It proposes to:

repeal the three-strikes life sentence for drug crimes, and instead implement a 25-year penalty for third offenses;

reduce the two-strike drug penalties from 20 years to 15 years;

allow a firearm sentencing enhancement to run concurrently with the underlying penalty (currently, a defendant who convicted of a non-violent drug offense whilst nevertheless possessing a firearm is essentially given two sentences);

expand the sentencing “safety valve” so that judges can deviate from the harsh penalties prescribed for certain drug crimes;

retroactively reduce sentences for those convicted of crack cocaine offenses before the law was changed to remedy the disproportionate treatment of crack to powder cocaine; and

allow low-risk inmate who participate in anti-recidivism programs to receive earned time credits and thus serve the remainder of their sentence in a supervised release setting.

A more modest version of the bill was already passed by the House of Representatives. Many hope the Senate will vote on – and pass – the amended version before the end of this session.

As defense attorneys, we see the broken parts of our system every day. We have a constitutional duty to fight for just outcomes at each stage of the case, and sentencing is the most critical stage for many of our clients. This is especially true for those charged with and convicted of white collar crimes, who often want, more than anything, a chance to rebuild the lives.

But getting a fair sentence is not easy. The court can sentence defendants based on conduct for which they were not convicted and evidence that would be inadmissible at trial. The court also considers the U.S. Sentencing Guidelines, a nuanced scheme that, among other challenges, may call for defendants to re-serve time they had already served in a state facility. But as defense attorneys, we focus in this work and do whatever is necessary to make sure the punishment fits the crime (and importantly, the offender). Nevertheless, systemic reforms are undoubtedly needed.

The First Step Act is a bipartisan policy, and bipartisanship is rare in today’s climate. Criminal justice reform has become an area where both sides of the aisle can find common ground. Republicans and fiscal conservatives see mass incarceration as a wasteful use of public funds and loss of human capital, and the federal government’s role in our criminal/legal apparatus – in which public safety is a police power of the states – as far too big. For Democrats and social justice progressives, mandatory minimums and strict drug laws are tools of a discriminatory system – applied disproportionately to certain defendants – and crime should be approached as a consequence of poverty, illness and trauma.

Drs. David Mann and Vera Mann are an elderly couple who claim they were swindled and robbed by the nurses they had trusted to provide needed nursing care in their home. They hired these health care professionals—Constant Ottro Bahi, Marie Poteman, and Mariatu Sesay—through a company that provides a listing of licensed nurses, Tri-Cities Nurse Registry and Helpmates. The Manns bring multiple intentional and unintentional tort claims against the nurses and the company, and bring a Consumer Protection Procedures Act claim against the company. One of the nurses, Bahi, moves to dismiss Count V, intentional infliction of emotional distress, against him because he argues that the Manns have failed to state facts sufficient to support that claim. As explained below, the Court will deny Bahi’s motion to dismiss Count V.

Baltimore asks high court to dismiss $15M suit by freed man

The Baltimore Police Department and three officers have asked the U.S. Supreme Court to throw out a $15 million lawsuit brought against them by a man who served 20 years in prison for murder before DNA tests led to his freedom. In seeking the high court’s review, the department and officers argue that James Owens waited too long to bring his lawsuit alleging they withheld exculpatory evidence from his 1988 trial. They also say they should have “qualified immunity” from suit because in 1988 the law was not clearly established that individual police officers had a duty to bring forward exculpatory evidence.

U.S. District Judge George L. Russell III in Baltimore had dismissed Owens’ lawsuit in 2012 after finding it was filed late and that the department and officers had qualified immunity anyway. But the 4th U.S. Circuit Court of Appeals revived the litigation last September, saying no immunity existed due to their alleged constitutional violation. The 4th Circuit also rejected Russell’s conclusion that Owens waited too long before filing suit on Oct. 12, 2011. Russell had held that the three-year statute of limitations began to run on June 4, 2007, when Owens’ conviction was vacated due to the newly discovered DNA evidence. But the 4th Circuit said the three-year clock did not start until Oct. 15, 2008 — when the Baltimore City state’s attorney chose not to retry Owens. Thus, Owens met the filing deadline with three days to spare in 2011, the 4th Circuit added, prompting the appeal.

The Supreme Court has not stated when it will vote on the department and officers’ request for review. The case is Baltimore Police Department et al. v. Owens, No. 14-887.

Charles N. Curlett Jr., an attorney for Owens, called it “most unfortunate” that Baltimore has been unwilling to compensate Owens for its flawed and constitutionally suspect prosecution of him. The city is “digging in its heels to avoid paying anything at all,” Curlett, of Levin & Curlett LLC in Baltimore, said Thursday. “We would like to see a change in their posture but at the moment it seems they want to litigate this all the way to the Supreme Court.”

Suzanne Sangree, of the Baltimore City Law Department, said the high-court appeal “has nothing to do with an effort to deprive Mr. Owens of what he may be entitled to.” The city’s focus is on ensuring that police departments and their officers have qualified immunity and cannot be held liable for failing to share exculpatory evidence with the defense, an obligation the Supreme Court has long held belongs to prosecutors, Sangree said Thursday. “Police officers are not lawyers,” added Sangree, the law department’s chief of police legal affairs. “They can’t make that sophisticated legal judgment of what is potentially exculpatory.”

Owens brought suit under Section 1983 of the 1871 federal Civil Rights Act, which prohibits government employees from violating the constitutional rights of individuals. Owens alleges the withholding of exculpatory evidence by officers Jay Landsman, Thomas Pelligrini and Gary Dunnigan violated his right to that information under the Supreme Court’s 1963 decision in Brady v. Maryland. In seeking Supreme Court review, the department and officers say the justices have already held — in their 1994 decision in Heck v. Humphrey — that the three-year filing clock on Brady claims starts when the underlying conviction is invalidated and not later when the prosecution drops the case. Four circuit courts of appeal have ruled similarly, making the 4th Circuit’s decision an outlier, Sangree wrote in the petition for review. “This divergence of opinions reflects confusion on the part of the courts of appeal that can only be resolved by this court,” Sangree added in the petition to the justices. Sangree also made the qualified-immunity argument, saying police departments and their officers had no reason to suspect, particularly in 1988, that they were obliged to share exculpatory evidence with the defense. “Rather than place an independent burden on police officers, this court has instead always required the prosecution to create and implement procedures to ensure that police officers disgorge to the prosecution all relevant information in a criminal case, including importantly, all exculpatory evidence,” Sangree wrote. “The 4th Circuit’s ruling is therefore at odds with the decision of this court, and certiorari is appropriate and necessary to correct the error.”

But Owens’ attorneys dispute Sangree’s interpretation of prior rulings, telling the high court that the three-year clock cannot start while a defendant remains under the threat of a retrial. “No court of appeals has held that the statute of limitations on a Brady claim begins to run while the plaintiff remains subject to pending criminal proceedings in which the Brady violation may recur through the introduction of evidence tainted by the violation,” Curlett and his co-counsel wrote. With regard to qualified immunity, the attorneys say the legal issue is not whether the police had a clearly established duty to share exculpatory evidence with the defense, but whether Owens had a clearly established right to that evidence. “This court has noted repeatedly that the scope of the Brady obligation encompasses not only material known to prosecutors but also material known to police,” the lawyers wrote. Curlett was joined on the brief by attorneys from Brown, Goldstein & Levy LLP in Baltimore and Public Citizen Ligation Group in Washington, D.C.

Owens was convicted of felony murder and burglary in the Aug. 2, 1987, killing of Colleen Williar. Owens was sentenced to life in prison. In his lawsuit, Owens alleges the police officers knew the prosecution’s star witness — James A. Thompson — had told at least four different and inconsistent stories about Owens’ involvement. Thompson eventually testified that Owens had handed him the murder weapon, a knife, days after Williar was killed. Thompson said Owens told him he’d had sex with Williar. But Owens’ boss had told detectives Owens was at work when that conversation supposedly occurred – information the police never shared with defense counsel, Owens’ lawsuit alleges.

Judge Richard D. Bennett of the United States District Court for the District of Maryland has rebuked state court judges while overturning the conviction of a 1997 murder, the City Paper reports. According to the article by veteran crime reporter Van Smith, “Bennett has ordered a new trial for Nicholas, because statements given to Baltimore police by two witnesses, who both said they heard gunshots at about the time and place Nicholas said Aja had been shot—which bolstered Nicholas’ version of events, while undermining the state’s case—were illegally withheld from his defense.”

The Court of Appeals of New York has resolved a long simmering question facing out-of-state attorneys who are barred in New York but reside elsewhere. Can they appear as counsel of record in a New York case? Interpreting Judiciary Law §470, the Court held that an out-of-state attorney must maintain an office for the purpose of transacting law business in New York to be eligible to practice within the state. The issue was presented on a certified question from the U.S. Court of Appeals for the Second Circuit, which will consider whether the statute violates the Privileges and Immunities Clause of Article IV, §2. So this may not be the final word. The case is Schoenefeld v. State of New York, No. 39, NYLJ 1202722163813, at *1 (Ct. of App., Decided March 31, 2015).

In December, 2013, the City Paper reported, “Two men want detectives made famous by David Simon to pay after flawed murder convictions put them in prison for decades.”

After a significant victory in the United States Court of Appeals for the Fourth Circuit in one of those cases, the Baltimore Police Department and its Detectives have appealed the decision to the United States Supreme Court. The latest phase of the litigation was covered in today’s Maryland Daily Record. This link to the article is for subscribers only, but we’ll post the reprint as soon as we get it.

As fans complete their March Madness bracket sheets for their office pools, many will wonder, if only fleetingly, is this legal? While we will not opine on the legality of such endeavors in this post, we draw your attention to at least one prosecutor’s office that thinks otherwise. Fox News reports that a New Jersey man faces criminal prosecution after the pool he managed grew to an $837,000 pot and payouts were being made to the Genovese crime family. It seems the Know Your Customer rules apply to those running sports brackets as well as banks.

The Washington Post reports how an FBI agent was able to procure drugs to feed his heroin addiction – by skimming them from bags seized as evidence in criminal cases. Our own Steve Levin is quoted in the article, “It’s shocking that there was such little oversight,” said Steven H. Levin, a private lawyer in Baltimore with 10 years’ experience as a federal prosecutor. “It’s something you would expect to see on a made-for-TV movie. . . . You’re thinking, there is no way that could ever happen. And that’s what happened.”

Here at Levin & Curlett, we keep an eye on the global tumult that may lead to international criminal proceedings in The Hague, whether before the International Criminal Court of one of the ad hoc Tribunals.

Of late, our attention, as well as the world at large, has been focused on the Islamic State (or ISIL, or ISIS, or Da’esh, depending on whom you ask). This week the United Nations Security Counsel expressly condemned the murder of 21 Egyptian Coptic Christians in Libya. “The members of the Council further emphasized that such ‘continued acts of barbarism perpetrated’ by ISIL do not intimidate them but rather stiffen their resolve that there has to be a common effort amongst Governments and institutions, including those in the region most affected, ‘to counter ISIL, Ansar Al Sharia entities…and all other…entities associated with Al-Qaida,’ as the Council resolved in its resolutions 2170 (2014) and 2199 (2015), adopted just last week.” Secretary General Ban Ki-Moon also condemned the actions.

Whether through military engagement or the mechanism of international criminal justice, or both, the threat must be checked.

The New York Times reports that an arbitration panel has ordered the cyclist to pay $10 million in a fraud dispute with SCA Promotions citing an “unparalleled pageant of perjury, fraud and conspiracy” related to the cover-up of Armstrong’s use of performance enhancing drugs. Armstrong’s lawyer stated that the ruling is “contrary to Texas law” and predicted it would be overturned in court. Such confidence is, in all likelihood, misplaced. Courts routinely uphold awards even when the law is misapplied by arbitrators. The standard to throw out an arbitration award requires the panel to have acted “in manifest disregard of the law.” That standard is rarely met. If I were a betting man, I’d wager Armstrong eventually writes the check.

Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals has spoken of an “epidemic” of prosecutorial misconduct in California.

Both the New York Times and the Los Angeles Times have published editorials since yesterday calling for legal reform that will allow prosecutors to be held accountable for misconduct.

Further illustrating the widespread and pervasive nature of corruption in the criminal justice system, on Saturday the Baltimore Sun’s Mark Puente published an article examining how a criminal case can fall apart when the police are, shall we say, less than truthful in their affidavits submitted to courts in support of search warrants.

Two months after a Staten Island grand jury refused to indict an officer for the chokehold death of Eric Garner, which was recorded on video, a Brooklyn grand jury charged an officer with manslaughter, criminally negligent homicide and other offenses for the single shot fired in a pitch-dark hallway that killed Akai Gurley.

Assistant United States Attorneys (AUSAs) often take the position that a proffer letter, or a “Queen for a Day” agreement, is intended to protect a defendant who ultimately chooses not to cooperate with the government. Stated another way, as the Seventh Circuit Court of Appeals did in United States v. Threw, 861 F.2d 1046 (7th Cir. 1988), “the purpose of [a proffer letter], according to the government, is to ensure that in the event a cooperating defendant decides not to plead guilty, any information he may have ‘proffered’ to the government cannot later be used against him at trial” or sentencing, with some exceptions. It is those exceptions that call into question a proffer letter’s true purpose. In my view, the purpose of a proffer letter, from the government’s perspective, is to ensure that a defendant pleads guilty, because if he goes to trial after proffering, he is going to sentencing as well.

A Note From the Doctor Won’t Help This Government Employee, Sentenced for Scheme to Defraud Federal Voluntary Leave Transfer Program She Administered–she created false doctor notes to take paid time off donated by other employees

You’ve got to love the alliteration of this press release: Four-Time Fraudster Sentenced to 44 Months.

What is it that they say about the family that schemes together? Here’s what the US Attorney’s Office has to say: Frederick Couple PLEAD GUILTY to Fraudently Obtaining Over $700,000 in Advanced Fees.

So much for the security in the Social Security Administration: SSA RETIREE PLEADS GUILTY TO EMBEZZLING OVER $400,000 AND TO TAX EVASION.

The Justice Department’s Bureau of Justice Statistics has issued this new report on pretrial release in the federal system.

Here is the accompanying press release:

From 2008 to 2010, federal district courts released more than a third (36 percent) of defendants prior to case disposition, according to a study released today by the Justice Department’s Bureau of Justice Statistics (BJS). Nearly two-thirds (66 percent) of released defendants were released at their initial appearance hearing, while the rest were released at subsequent events including detention or bond hearings. Continue reading “DoJ News”→